I was planning on responding to this article I had read earlier, but then I read this and I began to see a theme and I asked myself: what relationship is there, if any, between so-called ‘loophole’ or ‘override’ provisions and their parent statutes? The answer, I would suggest, might go against our common sense.
Tax Code
What do Canadians like to complain about besides the weather (and losing to the US in hockey)? In a word: taxes. The Globe & Mail article linked to above seemed to think it was doing us a favour in that regard. It was purporting to educate ‘wealthy’ Canadians about their options when it came time to file their taxes (though, perhaps, a little too late for this year). What did the enlightened individuals who habitually post comments to G&M articles have to say about that? Well, in two words: loopholes bad.
Why are they bad? Because they allow these ‘wealthy’ Canadians to shirk their responsibility to society by not paying the maximum amount of taxes possible to the government(s). My question is: why should they have to? The tax code says, among other things, that certain entities are taxed at certain rates and sets out the way in which tax brackets work. What it does not do (as far as I am aware) is forbid those who are not wealthy from taking the same liberties (yes, I chose that word on purpose). Now, as with many private/civil rights (‘civil’ as in distinguished from the Charter, not as in the 1960s movement in the US), many of the liberties that the tax code affords are simply not worth pursuing unless you happen to be wealthy. I say this because the right to sue someone who has totalled your car is worth far less when the car in question is a 1992 Corolla than if it were a Bentley. The same, I would suggest, applies to the tax code. Just because your means don’t make the setting up of holding companies and trusts or the making of spousal loans worthwhile doesn’t mean they are ‘loopholes’.
My problem with the term, is that it suggests that those who avail themselves of their legal rights are engaged in some kind of moral breach. If (big if for some, I know) paying your taxes is a morally good thing and if these moral goods are set out in a certain statutes, then it is unclear to me how other provisions of that statute come to take on this sinister moral character. Now, this is not to suggest that you can’t claim that certain parts of a statute are immoral without impugning the entire thing (certain parts of the Criminal Code come to mind). It is to suggest, however, that if a statute explicitly provides for a course of action, then that course of action should not be labelled a ‘loophole’. This is for the simple reason that this course of action does not occupy some weird conceptual space left hanging between (hypothetically) ss. 3.4(1) and 3.4(3); it is actually s. 3.4(2). A loophole, then, would properly be a course of action that,while not explicitly forbidden in a statute, is nonetheless not explicitly provided for either. The scary part about that statement? It describes most of your ‘civil rights’ (as understood above) and, in fact, characterizes most of the common law.
The Charter
It seems that Mr. Yunusov’s concern in his article (link above) is that between ss. 1 and 33 the rights guaranteed in the Charter aren’t worth the paper they are written on. He’s not in bad company, to be sure, but his argument about the Charter sounds decidedly similar to the arguments about the tax code above. Both s. 1 and s. 33 of the Constitution Act, 1982 are part of the ‘Charter’ which is the first 34 sections of that document. In what sense are those two sections loopholes? They both allow government actors to behave in ways that otherwise limit a Charter right, either by establishing that the limitation is a reasonable one in the circumstances (s. 1) or by passing legislation notwithstanding that particular right (s. 33). In short, both sections allow the government to dodge their obligations and undermine the Charter, much the same way the wealthy do with their taxes every year.
My response here is substantially the same. I also want to highlight what is, in my opinion, a paradigm example of why we have s. 33 in the first place. First, a constitutional loophole (i.e. something that would really allow a government to disrespect someone’s rights) would be the result of a poorly worded constitution, not the result of a particular section of the constitution itself. A perfect example would be s. 15’s protection of equal treatment irrespective of a set of characteristics (race, colour, faith, gender, etc.). Sexual orientation was left out of that list, and quite deliberately I’m told, and that, in my mind, constitutes a loophole that some governments attempted to exploit (Alberta, that would be you). Now, the courts are, unsurprisingly, not thrilled when such bona fide loopholes are brought to their attention. They tend to close them quite quickly, as they did here, by reading sexual orientation into s. 15 as a protected ground.
Does this make rights (both civil and human) a little uncertain? Sure. Does it allow for a more flexible approach to complex questions? Sure. Some, like Mr. Yunusov, might argue that to protect something so important as your Charter rights such flexibility is a cost he is willing to accept. He is entitled to that view (s. 2(a) and/or (b) if you’d like to check), but I cannot share it. Rights are never absolute (see all the ink spilt over ‘fighting words‘ in the US for but one example). Sure, their Bill of Rights makes for a more stirring read than ours, but does that surprise anyone coming from a country whose founding principles are “peace, order, and good government”? We’ve always had a more practical bent, but, perhaps ironically, we also tend to have a better record when it comes to protecting those rights. Perhaps its a cold comfort, but in our jurisprudence we explicitly recognize when we are limiting someone’s rights. In other systems, the protection isn’t engaged because the argument is that the right wasn’t engaged, that is, it wasn’t limited. Often that is patently false (as with fighting words – you are clearly limiting my ability to express myself. It is, obviously, a reasonable limitation, but that doesn’t change the fact that it is a limitation).
This brings me to my second concern, about those who would wage war against ‘loopholes’ and that is the recent SCOTUS decision in Citizens United. I’m just going to guess that Obama & Co. would really like a s. 33 of their own right about now. Their alternative? The intellectually honest, precedent respecting, and time honoured tradition of waiting for a judicial opening and filling it with someone who thinks like you do. This is clearly the President’s prerogative, but it is also a far less principled way of dealing with the issues at stake. Furthermore, while any appoint to the bench carries a degree of uncertainty, any statute passed pursuant too s. 33 is subject to renewal every five years or else the exception expires (and brings the legislation back into the realm of Charter scrutiny). You can’t say the same about binding Supreme Court decisions.
Tomato, Tomato you say?
It seems to me that if the ‘offending clause’ (let’s call them) is part of the document itself, then it was intended to be there as a matter of positive law. If this is true, then we cannot suggest that those who are taking advantage of them are doing something wrong. The objection at this point would be: we aren’t suggesting they are doing anything wrong, only that they are doing something immoral. That is a tougher question, indeed. Still, I would think that the blame would be on the offending legislature(s), not on the particular person who happens to be exercising their liberty. If there is something immoral about reasonable and demonstrably justified limits on rights or on paying less taxes through the proper use of trusts, then it is the legislature’s fault for endorsing them.
‘But they’re still immoral then!’ you say. I don’t dispute that, I only dispute the imputation that it is a legal problem. It is not. It is decidedly a political problem and, in the case of the Charter, a fairly intractable one. Both cases, however, allow governments to be flexible in their approach to complex problems and, that alone, seems laudable. They won’t get it right every time, but as long as it keeps them from getting it spectacularly wrong, that seems good enough.
